The 12th amendment to the Public Procurement Code and the special public procurement regime
Law no. 30/2021, of 21 May, approved, namely, (i) the 12th amendment to the Public Procurement Code (CCP), as well as (ii) a special public procurement regime in terms of projects financed or co-financed by European funds, of housing and decentralization, information technology and knowledge, health and social care, implementation of the Economic and Social Stabilisation Programme and the Recovery and Resilience Plan, fuel management under the Integrated Management System for Rural Fires (SGIFR) and agri-foodstuffs.
In summary, we highlight the following characteristics of the simplified procedures introduced by this law:
- mandatory proceeding on electronic platforms, with the exception of prior consultations in the cases, set out in Article 115(1)(g) of the PPC when aiming to enter contracts with a lower value than those provided for in Articles 19(c), 20(1)(c), 21(1)(b) or 31(4) of the same codifying legislation;
- exemption from the obligation to state reasons, by the contracting entity, of the decision not to contract in lots, provided for in Article 46-A (2), and of the fixing of the base price, provided for in Article 47(3), both of PPC;
- ban on invitations to the proposal of tenders by entities to which the contracting entity has already awarded a contract, in the current economic year and in the two previous economic years, following the simplified prior consultation adopted under Law No. 30/2021, of 21 May, tenders for the conclusion of contracts whose cumulative contractual price is (i) equal to or greater than € 750,000.00, in the case of public works contracts or public services and public works concessions, (ii) equal to or greater than the thresholds referred to in Article 474(3)(b) or (c) and (4)(b) of the CPC, whichever is applicable,
- application, with the necessary adaptations, to the simplified prior consultation of the limits foreseen in Article 113 no. 3 to 6 of the PPC;
- with regard to impediments, it is considered, for the purposes of Article 55, no. 1, paragraphs d) and e) of the PPC, that the contributory or tax situation is regularized of the candidates or competitors who, having debts relating to social security contributions or taxes, are in any of the situations foreseen in Article 208 (2) of the Social Security Contribution Scheme Code or in Article 177-A, n.º 1, paragraphs b) to d) of the Tax Procedure and Process Code, whichever is applicable;
- also in terms of impediments, the contracting entity must also admit the participation of candidates or competitors whose tax or social security contributions situation is not regularized, provided that the debts related to social security contributions or taxes (i) result from a temporary impossibility of liquidity, certified by a statutory auditor or chartered accountant and (ii) together do not exceed € 25.000;
- in cases where a bid is awarded to a competitor whose tax or social security situation is not regularized under the terms allowed by this special scheme, the contracting entity must retain the full amount owed and proceed with its deposit to the Social Security or Tax and Customs Administration, depending on the case;
- the deadlines for the pronouncing competitors in the context of a prior hearing are 3 days in the simplified prior consultation and 5 days in the public tender and in the limited tender by simplified prior qualification;
- the provision of a deposit may not be required if the contractor demonstrates the impossibility to (i) make the deposit in cash due to illiquidity, evidenced by a term of the statutory auditor or certified accountant, and (ii) obtain insurance for the execution of the contract to be celebrated or a declaration of assumption of joint liability, pursuant to the provisions of Article 88(4) of the PPC with, at least, two insurance or banking entities.
- the deadlines for submitting, pronouncing the interested parties, and for the decision of administrative appeals, foreseen in Articles 270, 273 and 274 of the PPC, are three days.
The special public procurement measures and the amendments to the Public Procurement Code approved by this law shall only apply to public procurement procedures that begin after 20 June 2021 (i.e., with a decision to contract after that date), as well as to contracts resulting from those procedures.
28 May 2021
Marco Real Martins and Sérgio Alves Ribeiro
